HomeMy WebLinkAbout79-072 LeymarieDISCUSSION:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION
December 19, 1979
Edward Leymarie, Jr.
Borough of Elwood City
525 Lawrence Avenue
Elwood City, PA 16117
RE: Political Subdivision Tort Claims Act,
53 P.S. 5311.101 et seq.
FACTS:
79-072
On September 26, 1979, Edward Leymarie, Jr., Esquire,
Solicitor for the Borough of Elwood City, requested
advice as to whether councilmen named in a lawsuit may
vote on whether the Borough shall pay for their legal
defense, pursuant to the Political Subdivision Tort
Claims Act.
On September 13, 1979, Mary Ann Fleo filed a
Complaint, Fleo v. Gato, et al in the United States
District Court for the Western Federal Judicial District
against Richard Gato, President of Borough Council, and
others. The suit alleged libel and Civil Rights Act
violations.
On October 15, 1979 Chief Counsel issued an Advice
holding that the State Ethics Act did not bar members
of Borough Council from voting on whether legal defense
fees should be provided them. This Advice was withdrawn
on October 22 upon appeal by Borough Manager Ferrese
and others.
On November 7, 1979, the State Ethics Commission
heard testimony from Solicitor Edward Leymarie, and
various individuals sympathetic to the Complainant,
Mary Ann Fleo.
The Commission directed Chief Counsel to make
further inquiries into these allegations, which were
answered by John Alan Conte, counsel for the Respondents
named in the Civil Suit.
The threshhold issue is whether the Political
Subdivision Tort Claims Act may be utilized at all
in connection with a federal civil rights suit.
OPINION
PAGE 2
council and the State Ethics Commission. The statements
of financial interest are due by May 1, if appointed
prior to May 1, and upon appointment appointed after
May 1.
Pursuant to Section 7(9)(i), this opinion is a
complete defense in any enforcement proceeding initiated
by the Commission, and evidence of good faith conduct
in any other civil or criminal proceeding, providing the
requestor has disclosed truthfully all the material facts
and committed the acts complained of in reliance on the
advice given.
This letter is a public record and will be made
available as such.
PAUL J. W ITH
Chairma
(SEAL)
UPDATE: A Pennsylvania Supreme Court ruling (436 A.2d 186) addressed this facutal determination. The court ruling
states that all part - time solicitors to political subdivisions are neither public employees nor public officials within
the scope of the Ethics Act. Consequently, the Ethics Commission has no jurisdiction over solicitors to political
subdivisions. See Update 79 -034.